ORDER
J.R. Chopra, J.
1. Briefly stated the contention of the petitioner is that he was engaged as a daily wage driver w.e.f. April 27, 1988 and has continuously worked up to January 10, 1089 when his services were terminated. Consequently, he has worked for more than 240 days and his termination has been effected without complying with the provisions of S. 25F(a) and (b) of the Industrial Disputes Act and therefore, the termination is per se void and he deserves to be restored back to his position.
2. In this respect, the contention of the respondents is that Shri Bhika Ram, driver, was regularly working in the Panchayat Samiti on the post of a driver. He fell ill and went on a long leave and, therefore, just to carry on the work of this temporary vacancy, on account of the medical leave applied by Shri Bhika Ram, this man was engaged on daily wages of Rs.20/- per day. It is not denied that he was engaged on daily wages at the rate of Rs.20/-. However, as per the respondents, he was appointed on May 26, 1988 and has remained in service up to January 10, 1989. It was contended by the respondents that in the month of June, he has worked for 25 days, in July for 6 days, in August for 27 days and in September, October, November and December 1988 for 26 days in each month and for ten days in January and accordingly he has worked only for 221 days and, therefore, he has not completed 240 days.
3. In this respect, the learned counsel for the petitioner has drawn my attention to Annexure I issued by the Vikash Adhikari of the Panchayat Samiti in which he has mentioned that Shri Chaggan Lal has worked as a driver on account of the illness of the regularly appointed driver from July 2, 1987 to August 5, 1987 in one spell and thereafter he was appointed on April 27, 1988 and has been regularly working till the dale of this certificate i.e. September 17, 1988. However, in para 6 of the reply filed by the respondents, it has been mentioned that he has worked up to January 10, 1989 with certain breaks. The contention of Mr.Saluja is that these days have been calculated by excluding Sundays and paid holidays and this cannot be done in calculating a period of 240 days. Such days have to be included in the period of work. In this respect, he drew my attention to the decision of their Lordships of the Supreme Court in Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation (1985-11-LLJ-539) wherein their Lordships observed as under (542-543):
“The qualification for relief under S. 25F is that he should be a workman employed in an industry and has been in continuous service for not less than one year under an employer. What is continuous service has been defined and explained in Section 25B of the Act. In view of sub-section (2) of Section 25B the workman shall be deemed to be in continuous service if he has “actually worked under the employer” for particular period. The expression “actually worked under the employer” cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. Thus Sundays and other paid holidays should be taken into account for the purpose of reckoning the total number of days on which the workman could be said to have actually worked”.
4. It is thus clear that Sundays and other paid holidays have to be taken into account for the purpose of reckoning the total number of days on which the workmen can be said to have actually worked. The contention of the respondents is that as per Annexure 1 wherein Vikash Adhikari has categorically stated that since April 27, 1988, he is working regularly without any break whereas the Panchayat Samiti claims that he has not worked between April 27, 1988 to May 26, 1988 and in the month of June, he has worked only for 25 days, in the months of July for 26 days and in August for 27 days whereas according to this certificate, which has been issued by the Executive Officer i.e. Vikash Adhikari of the Panchayat Samiti he was employed by the Panchayat Samiti on April 27, 1988 and since then he is regularly working without any break and, therefore, the contention of Mr.Saluja has to be accepted that after April 27, 1988, he has regularly worked up to January 10, 1989 without any break although the Panchayat Samiti has submitted that certain breaks were there in each month. They only relate to the Sundays and paid holidays and no other day and accordingly, it has to be held that he was worked for more than 240 days.
5. Once it is held that the petitioner has worked for 240 days then his services cannot be terminated without compliance of Section 25F (a & b) of the Industrial Disputes Act. He has to be given one month’s notice in writing indicating the reasons for retrenchment and if the period of notice has expired, the workman must be paid one month’s notice pay in lieu of that notice and secondly workman has to be paid retrenchment compensation which shall be equivalent to 15 days of the average pay for every completed year of continued service or any part thereof in six months. This has admittedly not been complied with in this case and, therefore, the termination or retrenchment of the workman is void ab initio. In this respect, Mr.Saluja has placed reliance on the decision of their Lordships of the Supreme court in Mohan Lal v. Management, Bharat Electronics Ltd. (1981-II-LLJ-70) wherein their Lordships observed that it is well settled that where pre-req-uisite for valid retrenchment as laid down in Section 25F has not been complied with the retrenchment bringing about termination of the services is ab initio void. Such a retrenchment as per their Lordships is invalid and inoperative and in other words, it does not bring about the cessation of service of the workman and the workman continues to be in service. In para 17 of this judgment, their Lordships observed that where the termination is illegal especially where there is an ineffective order of retrenchment there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits. Mr.Saluja further submitted that he is entitled to the pay of a regular driver and in this respect he placed reliance on a decision of their Lordships of the Supreme Court in Bhagwan Das v. State of Haryana reported in (AIR) 1987 SC 2049 and Daily Rated Casual Labour employed under P & TDept. v. Union of India (1988-I-LLJ- 370).
6. The contention of Mr.Choudhary is that certain qualifications are prescribed for selection of a person as a driver. In this case, the regular driver was already in the employment of the Panchayat Samiti, he only fell ill and went on medical leave and, therefore, this man was appointed as a Casual Worker to do his job and, therefore, in such manners when the man is not qualified and no regular selection has been made, he cannot be absorbed in the Panchayat Samiti and therefore, he is bound by the contract of his services. It is true that this man was employed in the leave vacancy of a regular driver and, therefore, he cannot claim any regular appointment and all consequential benefits of regular employment. He was only employed as a stop-gap arrangement but as his services have been terminated in non-compliance if Section 25F(a) and (b), the petitioner is entitled to the wages which he was drawing at the time of his retrenchment. It will be open to the Panchayat Samiti to terminate his services if there is no vacancy existing and if he is not otherwise qualified to hold the post of driver in the Panchayat Samiti and after taking him back in the service of the Panchayat Samiti and after paying him consequently benefits to which he was entitled and that too, has to be done while complying with the provisions of Section 25F of the Industrial disputes Act and till it is not done, he will be treated in service as work charged employee.
7. Consequently, this writ petition is allowed, the retrenchment of the petitioner made vide order Annexure 4, is quashed. The petitioner will be taken back in service and will be entitled to wages which he was drawing earlier to his retrenchment. However, the Panchayat Samiti will be free to terminate his service if no vacancy exists with them or if he is not otherwise qualified to be appointed as a regular driver against a regular vacancy after complying with the provisions of Section 25F(a) and (b) of the Industrial Disputes Act, 1947.